Catherine Coleman as the LPR of the late Leonard Coleman and Repatriation Commission
[2014] AATA 782
•24 October 2014
[2014] AATA 782
Division VETERANS’ APPEALS DIVISION File Number(s)
2013/1884
Re
Catherine Coleman as the LPR of the late Leonard Coleman
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr D Letcher, QC, Senior Member Date 24 October 2014 Place Sydney The decision under review is affirmed.
..................[sgd].................................................
Mr D Letcher, QC, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – eligible defence service – substance abuse disorder-alcohol – posttraumatic stress disorder – alleged sexual assault – decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 120, 120B
CASES
Re TXBZ and Repatriation Commission [2014] AATA 19
SECONDARY MATERIALS
Statement of Principles concerning alcohol use disorder No. 2 of 2009 (as amended)
Statement of Principles concerning posttraumatic stress disorder No. 83 of 2014
REASONS FOR DECISION
Mr D Letcher, QC, Senior Member
24 October 2014
The late Leonard Coleman (Mr Coleman) was born in 1962. His mother and father separated in 1974 and he continued to live with his mother but saw his father on a regular basis. Mr Coleman joined the Royal Australian Navy on 20 August 1979. By early 1981, when he was aged 18 years old, he had a severe alcohol problem which remained with him until he died in June 2013. His sister Catherine Coleman brings this application as his legal personal representative.
On 29 January 2013 the Veterans’ Review Board (VRB) affirmed a Repatriation Commission decision that Mr Coleman’s conditions of posttraumatic stress disorder, substance abuse disorder–alcohol, Wernicke’s encephalopathy, haemorrhoids and erectile dysfunction were not defence-caused. The latter three conditions are related to the alcohol disorder and the applicant cannot succeed in relation to them if he is not successful in establishing that the alcohol abuse disorder was defence-caused.
Mr Coleman performed eligible defence service from 20 August 1979 to 10 August 1985. The standard of proof required in this matter is reasonable satisfaction on the balance of probabilities that there is a connection between the injuries or diseases and the service and the application of Statements of Principles is required (sections 120(4) and 120B Veterans’ Entitlements Act 1986). The respondent’s Statement of Facts and Contentions concedes the diagnoses of alcoholism, Wernicke’s encephalopathy and erectile dysfunction but contends that there is not sufficient evidence causally relating the claimed conditions to the service of Mr Coleman. Posttraumatic stress disorder is conceded to be properly before this Tribunal and the sexual assault alleged to be a cause of it was a major area of contention.
EVIDENCE BEFORE THE TRIBUNAL
The mother and sisters of Mr Coleman provided statements and gave oral evidence. Mrs Dunlop, his mother, gave evidence by telephone and said that her son was “relatively happy and trouble-free … happy and contented” before joining the Navy, he was not a drinker before that and after he left the Navy she did not see him drinking excessively except on odd social occasions. After he returned home from the Navy in 1985 she saw Leonard staring into space frequently and when she asked what the matter was he began to cry. He said: “I never wanted to tell you Mum but I was sexually assaulted when I was in the Navy”. He said he felt very unclean and was finding it hard to come to terms with it. He refused to seek help and said she was not able to help him.
She asked for details but he said: “I don’t want to tell you” and when she asked about whether it was affecting his relationships he said: “No, I don’t want to talk about it again” and they never spoke of it afterwards.
She said that Leonard was very affected by her marriage breakup which was caused by the violence and drinking of her husband, now deceased. She said that she had not told anyone about her son’s story of sexual assault until her daughter Catherine had raised it with her.
Catherine Coleman said that after the marriage breakup all three children had breakfast with their father at a café every Saturday and the children then went off to their sports fixtures. She did not believe Leonard had drunk to excess before the Navy. She said her mother would never have stood for it. She said Leonard was excited about going in the Navy but after a year or two he appeared changed, not the same person and was drinking quite a lot and didn’t look well. She asked him about this but he said: “I’m all right, sis” and did not say more. After he left the Navy, he stayed with Catherine for a period and she said she would have to prompt him to shower and eat. She then observed his decline over many years.
Sometime in 2012 Mr Sherlock of Legal Aid told her about the allegation of assault and what Leonard had told Dr Eaton. She said that Leonard had never told her of a sexual assault and she had never spoken to him about it. She said that “we talked about it in-family” but gave no detail.
Susan Ann Carter is the older sister of Leonard. She lived in the Fairlight area close to HMAS Penguin while Leonard was there. She had no knowledge of him drinking excessively or at all before joining the Navy. She recalled that in about 1981-1982 Leonard was at Penguin and began asking her for money, drinking a lot and looked unkempt and not very happy. She did not discuss his drinking and he did not say anything about the sexual assault to her.
Dr Warwick Eaton, psychiatrist, saw Mr Coleman on 19 October 2011 on referral from the Department of Veterans’ Affairs apparently at the instigation of Mr Coleman’s advocate, Mr Sherlock of Legal Aid. It is Dr Eaton who presents the most direct account of the alleged assault and alleged consequential posttraumatic stress disorder but even that account is very sparse.
The background to the consultation may be very important. On the day before Mr Coleman saw Dr Eaton, according to the transcript of the proceedings in the VRB, Mr Sherlock (who was very open about the occasion) rang Mr Coleman:
I called him and said, “When you go you’ve got to be absolutely honest and open with the doctor. If you’re not open and honest, if you don’t tell him everything he needs to know, it’s not going to help your claim”. And then he said to me, “Do I have to tell him everything?” and I said yes, and then he said to me, “Well, I haven’t told you everything”, and he explained to me then that he’d suffered this sexual abuse, and I said: “Well you must tell him that”, so I didn’t know about it until the day before he … When we lodged the claim Mr Coleman did not report this incident to me, but he told me about it the day before he saw Dr Eaton, so it’s not in the claim form. I mean the claim form would have a much stronger claim if we would have included this.
Mr Coleman told Dr Eaton that he had never told anyone except his mother and his advocate (Mr Sherlock) and Dr Eaton was impressed by the pain of the emotion. He believed that Mr Coleman, although obviously alcoholic, was not showing confusion as he told his story. However, what Mr Coleman told Dr Eaton was no more than what was read to the VRB by Mr Sherlock.
Mr Coleman gave evidence before the VRB on 29 January 2013, less than six months before his death. He was represented by Mr Sherlock. Mr Coleman’s evidence was very brief and in relation to the alleged sexual assault consists of the following:
MR SHERLOCK: … what Dr Eaton records here is:
It happened in September or October 1981, to the best of his recollection, when he was 19 years of age and was transferred from the Melbourne to HMS Penguin for some surgery to his lip and the removal of the sebaceous cyst on his cheek. During his few months there he said he was sexually abused by a petty officer, who told him to get undressed and “proceeded to penetrate from the rear, and then I had to give him what amounted to a blow job”. The officer said: “You don’t open your mouth or I’ll hurt you again”.
The question for Mr Coleman is – is this an account of what happened?
MR COLEMAN: Yes
MR SHERLOCK: And how did you feel when this incident was happening?
MR COLEMAN: Very scared and humiliated. I didn’t like it one little bit.
MR SHERLOCK: Yes, and how did you feel after the incident?
MR COLEMAN: Shock, horror. I felt I wasn’t worth being a person.
Mr Coleman told Dr Eaton that after the incident he was “afraid”. When asked about anger he said: “I wanted to kill him”. He said that he just tried to keep away from the petty officer during the few months he was at Penguin. He said he had been “too scared and too embarrassed” to report the incident.
That is the totality of the description of the event from all sources. He was asked whether he had mentioned the sexual assault to a Navy psychiatrist he saw in 1983-84 for his alcohol problem and he said he had not. He was asked about telling his mother and said that he told her “probably the same year, ’81”. Asked what did she say or do he said:
I don’t really remember what – we talked about it, but I didn’t really like talking about it, especially to my mother. That was about it.
There was no further detail given as to the time, place, circumstances or identity of the petty officer. Dr Eaton said that when there is strong emotional content often the last thing you get from a patient in therapy is the details. He agreed that he had not been interviewing Mr Coleman in a therapy context. He said: “I go with what the patient says because what is important for the patient is what is important… I’m just a treating psychiatrist”. He was not concerned that there was no objective corroboration of the allegation. He took details of nightmares, impaired sleep, flashbacks and panic attacks which he believed were typical symptoms of posttraumatic stress disorder. He also noted that Mr Coleman said his father gave him beer at age 11 and he began drinking excessively at about age 15 (but only at the Saturday drive-in).
The VRB members went further than Dr Eaton and asked a series of questions about events after the alleged assault. Mr Coleman said that after the incident he was posted back to the Melbourne and then back to Penguin and the man was still there but was posted out a month and a bit later. During that later time Mr Coleman had no dealings or contact with him, he did not bother Mr Coleman in any way. There was no repeat of the incident. The petty officer was not a medical staffer, he did not have a role connected with Mr Coleman’s treatment. The assault occurred after Mr Coleman had come out of the hospital and was working in a block party doing cleaning and tidying because his ship had sailed and he was drafted to Penguin until he could rejoin Melbourne. He said he was at Penguin for 14-15 months and then in 1984 he returned again to Penguin. He said that he had told Dr Mayne, a consultant psychiatrist whom he saw when he was on AREP (Alcohol Rehabilitation and Education Program), that he liked being at Penguin. He was asked: “… The incident didn’t cause you any angst being there?” and he replied: “No. No, I liked Penguin because it was close to my big sister and I quite enjoyed being at Penguin”.
He was asked about his alcohol consumption before joining the Navy. He said:
Mum and Dad were divorced, and I’d go and see Dad on the Saturday at the pub in Tamworth … where he was living. We’d sit in the beer garden, and I’d probably have two middies … on a Saturday morning with Dad, and that was about it.
As to later in his teenage years:
Well, on a Saturday night we’d go to the drive-in, and we’d all take a couple of cans, and we’d drink them at the drive-in … on a Saturday night half a dozen … on my own.
He agreed that was a typical Saturday night when he was 15 or 16 and it was just on Saturday night that he drank. At that age, he was seeing his father not every Saturday because his father was “involved with another lady” and not living at the hotel. He said that he did not drink at other times during the week.
It was put to him that during his Navy service he had consistently said that he had been drinking alcohol since he was about 10 or 11. He was asked: “Why would you have said that?” and he replied: “I was trying to be one of the boys” and he was trying to impress the people around him.
Mr Coleman denied drinking heavily before he joined the Navy and did not answer when he was asked:
MRS HARTMANN: So why did you tell people you’d been drinking since you were 10 when these people were trying to help you and you’re telling them fibs?
He said that his parents were divorced when he was about 13 and he saw his father at the hotel on Saturdays for about two years but then his father moved in with his girlfriend, they met at her place and he did not drink with his father on Saturday.
The Navy records contain a lurid account, dated 22 June 1983, from Mr Coleman of early alcohol consumption:
Coleman began drinking spirits on a regular basis at age 10 years, however can recall being given cans of beer as early as 2-3 years age… Since the age of 10 years his drinking has escalated and he has experienced many alcohol related problems, such as, Haematemesis [vomiting blood], loss of control of drinking, some short term memory loss, decreasing tolerance physical withdrawal symptoms, alcohol related fights”[T3-34]
This version of the extent of alcohol consumption before the Navy is dramatically different from what he told Dr Eaton in October 2011 which is more consistent with the evidence given by his mother and two sisters. There is no doubt that he had a serious alcohol problem by early 1981. He was it was recorded on 20 January 1981 that he was attending Alcoholics Anonymous (T12-119), admitted to hospital after a drunken fight on 19 February 1981 (T3-7), admitted to hospital for 13 days for alcohol abuse in March 1981 (T12-118) and diagnosed with alcohol gastritis on 6 June 1981 (T3-6). His alcoholism continued but there is no evidence that it worsened except by continuation. There is no evidence to support aggravation of his disorder by his circumstances of service.
The respondent called Dr Selwyn Smith, psychiatrist, who believed there was no “clinical evidence” relating the alcohol dependence and the Navy service, that in the absence of documentary records the allegation of sexual assault should not be accepted and that it was possible Mr Coleman had been “confabulating” as a result of his brain damage from alcohol. He noted that six weeks after seeing Dr Eaton Mr Coleman was diagnosed with Wernicke’s encephalopathy (7 December 2011, T16-147) which should have raised suspicions of memory loss or retrospective falsification.
The applicant tendered portions of reports dealing with sexual assaults on young people in the Australian Defence Force, at HMAS Leeuwin and the Royal Commission into Institutional Responses to Child Sexual Abuse. I have no doubt that a culture of obedience to superiors, not making complaints about harsh treatment, misuse of rank and shame at being the subject of an assault exists in defence force, including the Australian Navy. This makes victims reluctant to report abuse and causes them to suffer in silence. I have no doubt that actual sexual abuse occurs and it goes unreported and uncompensated.
DISCUSSION
The evidence raises two main questions:
(a)Is there evidence of a sexual assault such that the Tribunal should be satisfied on a balance of probabilities that it occurred?
(b)Is there a causal connection between naval service and Mr Coleman’s conditions?
Is there evidence of a sexual assault such that the Tribunal should be satisfied on a balance of probabilities that it occurred?
There are so many doubts and uncertainties about the alleged incident that I find myself unable to be satisfied on the balance of probabilities that it occurred. The only account of any detail was given in October 2011, almost 30 years after the event following urging by an advocate. Dr Eaton did not question what he was told or examine the story for inconsistencies as a medico-legal expert might. When he told his story to the doctor Mr Coleman was suffering brain damage after 30 years of alcoholism. That story is unsupported by other evidence and both unverifiable and unfalsifiable at this time. Mr Coleman must have known the name of the assailant but has never revealed it, he took no steps to be transferred away and the story lacks any detail permitting any further enquiry to support or diminish it. The probability of a petty officer suddenly confronting a sailor, ordering him to strip, sodomising him on the spot, obtaining fellatio and then never speaking to him again must be very low. I have been referred to the case of Re TXBZ and Repatriation Commission [2014] AATA 19 where an allegation of sexual assault by a superior (albeit from a different service) was not upheld mainly because of records showing a serious inconsistency in the applicant’s story (at para 48). The reliability of the witness and probability of occurrence need to be assessed carefully. At the time Mr Coleman told his story to Dr Eaton and reported symptoms pointing to posttraumatic stress disorder he was in a seriously deteriorated mental and physical state and still abusing alcohol. I find it difficult to place weight on his account in the absence of corroboration and I am not satisfied that Mr Coleman was sexually assaulted as alleged.
Is there a causal connection between naval service and Mr Coleman’s conditions?
The Statement of Principles concerning alcohol use disorder No. 2 of 2009 (as amended) requires that one of the identified factors, which must be related to the person’s relevant service, must exist before it can be said that the disorder is connected with the person’s relevant service. All of the factors require a category 1A or 1B stressor, a clinically significant psychiatric condition, death of a significant other or severe childhood abuse in the years before clinical onset of Alcohol Use Disorder. There is evidence of family breakup but no evidence of “severe childhood abuse” and Mr Coleman’s mother speaks of him having been happy and trouble-free. His sisters likewise do not give a picture of severe abuse or any psychiatric condition. It is clear that Mr Coleman had the disorder before the date of the alleged incident (which would constitute a 1A stressor) and the signs of the disorder were very clear from the Navy records quoted above. As stated above, there is no evidence that his condition was aggravated by the circumstances of his service.
The only factor alleged and pressed to support the connection of posttraumatic stress disorder to Mr Coleman’s service under the Statement of Principles No. 83 of 2014 relied on the alleged sexual assault as a Category 1A stressor and I am not satisfied that it occurred. I am also not satisfied that in terms of paragraph 3H of the Statement that the signs of disturbance attributed to the Disorder are not attributable to the physiological effects of alcohol or another medical condition.
CONCLUSIONS
I am not satisfied on the balance of probabilities that the condition of Alcohol Abuse Disorder and the consequential conditions of Wernicke’s encephalopathy, erectile dysfunction and haemorrhoids are connected to Mr Coleman’s eligible defence service.
I am not satisfied on the balance of probabilities that Mr Coleman suffered from posttraumatic stress disorder connected to his defence service.
DECISION
The decision under review is affirmed.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher, QC, Senior Member ..............[sgd].....................................................
Associate
Dated 24 October 2014
Date of hearing 15 September 2014 Counsel for the Applicant Ms C Mudge Solicitor for the Applicant Ms E Rice, Legal Aid New South Wales Advocate for the Respondent Mr T O’Reilly, Department of Veterans’ Affairs
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